N9654
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.533 OF 2017

GURE VALI
Plaintiff
v
MOTOR VEHICLES INSURANCE LIMITED
Defendant

Waigani:  David, J
2022:   22nd March, 4th, 5th April & 7th April

NEGLIGENCE – claim for damages for injuries sustained by a pedestrian in a motor vehicle accident on a public street – Motor Vehicles (Third Party Insurance) Act, Section 54. 

Cases Cited:
Papua New Guinea Cases

Shaw v Commonwealth of Australia [1963] PNGLR 119
The Government of Papua New Guinea v Elizabeth Lauwasi Uguna Moini [1978] PNGLR 184
Robert Brown v Motor Vehicle Insurance (PNG) Trust [1980] PNGLR 409
Supreme Court Reference No 4 of 1980 [1982] PNGLR 65
Burns Philp (NG) Ltd v Maxine George (No 2) (1983) SC259
Rundle v Motor Vehicles Insurance (PNG) Trust (No.1) [1988-89] PNGLR 20
Steven Charles Pickthall v Lae Plumbing Pty Ltd [1994] PNGLR 363
Kolta Development Pty Ltd v PNG Defence Force [1997] PNGLR 585
Papua New Guinea Institute of Medical Research v Papua New Guinea Banking Corporation (1999) N1934
PNGBC v Jeff Tole (2002) SC694
Andrew Moka v MVIL (2004) SC729
Kembo Tirima v Angau Memorial Hospital Board and The State (2005) N2779
Francis Wandaki v Wini Henao (2009) N3676
Tony David Raim v Simon Korua (2010) SC1062
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
Daniel Occungar v Luke Kiliso (2010) N4102
Reference by the East Sepik Provincial Executive (2011) SC1154
Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562
Helen Jimmy v Paul Rookes (2012) N4705
Galem Falide v Registrar of Titles and The State (2012) N4775
Alex Tongayu v Florian Gubon (2012) N4873
Board of Management, Holy Spirit Primary School v Moses Sariki (2013) N5446
Micky Akai v John Stanley Reeves (2014) SC1393  
Paul Perex v PNG Institute of Medical Research (2014) N5614

Overseas Cases
Donoghue v Stevenson [1932] AC 562

Treatise cited:
JD Heydon, Cross on Evidence, Butterworths, Fifth Edition, 1996

Counsel:
Emeteria Waeda, for the Plaintiff
Beryl Kumo, for the Defendant

JUDGMENT
7th April, 2022

1.	DAVID, J. INTRODUCTION: This is a claim by the plaintiff, Gure Vali for damages made against the defendant, Motor Vehicles Insurance Limited for personal injuries allegedly sustained in a motor vehicle accident that occurred at around 01:00 am on 18 May 2014 at or along the entrance of the gate to the Car Club along Waigani Drive, Port Moresby, National Capital District under the provisions of the Motor Vehicles (Third Party Insurance) Act.  These proceedings were commenced by writ of summons endorsed with a statement of claim filed on 1 June 2017.   On 18 May 2018, an amended Statement of Claim was filed (Amended Statement of Claim).  On 30 June 2017, the defendant filed its defence which was subsequently amended by its amended defence filed on 24 May 2018 (Amended Defence).  A trial was conducted on the question of liability.

PLEADINGS
2.	The plaintiff makes the following allegations in the Amended Statement of Claim.  In the early hours of 18 May 2014 at around 01:00 am, he was standing with one Jeffery Malesi Oneau (Oneau) outside the perimeter fence, near the entrance of the Car Club in Port Moresby, National Capital District and about three metres from Waigani Drive when a commotion occurred amongst people attending a function at the Car Club.  A Toyota Land Cruiser bearing registration number LBK 420 expiring on 26 November 2014 with Third Party Insurance Policy No.923 7277 (the motor vehicle) owned by Executive Security Services (ESS) was driven out of the Car Club by an employee of ESS namely, Kila Asi (Kila) and made a “U” turn and drove back towards the entrance of the Car Club and in the course collided with Oneau.  The motor vehicle was then reversed onto Waigani Drive and driven forward towards the entrance of the Car Club again when it collided with Oneau and himself.   He was hit by the motor vehicle from the rear.  The motor vehicle’s front bumper bar had a protruding piece of metal attached to it and the metal pierced his buttocks and pinned him to the bumper bar.  Oneau was knocked onto the bonnet of the motor vehicle.  The vehicle was subsequently driven into a pit and rammed him against a Telikom cable structure (Telikom structure).  The motor vehicle was reversed out of the pit with him still pinned to its bumper bar and driven forward ramming him against the Telikom structure for the second time.  He held onto the Telikom structure and got dislodged from the bumper bar.  The motor vehicle was reversed and driven forward again when it rammed him against the Telikom structure for the third time.

3.	He sustained multiple injuries as a result of the collisions and these were; torn rectum and anus; raptured left testicle; fractured pelvis associated with excruciating pains; excruciating pains and discomfort; and bleeding from his anus.  He now suffers and continues to suffer from the following disabilities; 30% of bodily disruptions and effective functional loss of the rectum and anus; 90% loss of function of right lower limb and leg; 100% loss of left testicle; 50% loss of male reproductive function; 20% loss of effective functional loss of urine flow; 40% loss of psychological trauma created by recollection of events; and 80% loss of normal gastrointestinal function secondary to anal injury.  The injuries he has suffered resulted in; the loss of his employment, he is unable to secure employment which requires manual labour; and he no longer has the effective use of his hips and back which have effectively inhibited his ability to do household work and other outdoor activities including gardening, fishing and sporting activities.  He therefore claims against the defendant; general damages, economic loss for past and future; damages for loss of amenities, special damages; damages for distress; interest pursuant to statute and costs of the proceedings.  

4.	The collisions were caused by the negligent driving of the driver of the motor vehicle particulars of which are:

1.	Driving at a rate of speed which was unreasonable and unsafe; 
2.	Deliberately driving at him;
3.	Failing to control the steering of the motor vehicle so as to avoid hitting him in the first instance; and
4.	Failing to take necessary precautions and apply the brakes so as to avoid hitting him the second and third time.

5.	In the amended defence, the defendant admitted its corporate status as a company registered under the Companies Act and for purposes of the Motor Vehicles (Third Party Insurance) Act, but denied liability by denying all other allegations.   

6.	In addition, as to paragraph 3 of the amended statement of claim where the plaintiff alleges that on 16 October 2014, he gave notice of his intention to make a claim against the defendant pursuant to s.54 of the Motor Vehicles (Third Party) Insurance Act, the defendant has averred that it received and acknowledged receipt of emails from the Office of Workers Compensation dated 11 September and 16 October 2014, but did not know and could not admit each and every other allegation.

7.	No reply to the amended defence was filed by the plaintiff.   This means that there was an implied joinder of issue on the amended defence by virtue of Order 8 Rule 22(1) of the National Court Rules:   Alex Tongayu v Florian Gubon (2012) N4873.

EVIDENCE

8.	The trial was conducted by affidavit evidence.

9.	In support of the case for the plaintiff, he relied on the following affidavits:   

1.	Affidavit of the plaintiff himself sworn on 24 August 2018 and filed on 28 August 2018 (Exhibit A);
2.	Affidavit of Dr. Ikau Mataio Kevau sworn on 7 June 2021 and filed on 8 June 2021 (Exhibit B);
3.	Affidavit of Dr. Jenny Tovu sworn on 12 July 2021 and filed on 13 July 2021 (Exhibit C);
4.	Affidavit of Jeffrey Malesi Oneau sworn on 15 November 2021 and filed on 17 November 2021 (Exhibit D); 
5.	Affidavit of Lynette Goa sworn on 10 February 2022 and filed on 25 February 2022 (Exhibit E); and
6.	Affidavit of Nathaniel George sworn on 14 March 2022 and filed on 15 March 2022 (Exhibit F).

10.	The defendant did not call any evidence in its defence.

11.	No cross-examination was conducted.

AGREED FACTS
12.	In the Statement of Agreed and Disputed Facts and Legal Issues for Trial filed on 26 November 2020 (the Statement of Facts and Legal Issues for Trial), the parties agree that the following facts are not disputed:

1.	At all material times, the defendant was a company duly incorporated under the Companies Act and can sue and be sued in its corporate name.
2.	The defendant carries on the business of insuring owners and drivers of motor vehicles against liability in respect of death of or bodily injury to persons caused by or arising out of the use of motor vehicles.   

DISPUTED FACTS
13.	All other facts alleged are disputed.

LEGAL ISSUES FOR TRIAL
14.	In the Statement of Facts and Legal Issues for Trial, the parties agreed that the legal issues for trial on both liability and quantum are:

1.	Whether the alleged driver of the motor vehicle was negligent that caused the alleged accident which resulted in personal injury to the plaintiff?
2.	Whether there was contributory negligence on the part of the plaintiff at the time of the alleged accident?
3.	What are damages the plaintiff is entitled to? 

15.	This trial is only about liability so the first and second issues are the relevant ones for my consideration and determination.

NOTICE OF INTENTION TO MAKE A CLAIM

16.	At the trial however, Ms Kumo for the defendant raised an issue outside of those agreed to by the parties in the Statement of Facts and Legal Issues for Trial which she contended was a preliminary issue that the Court should also consider and determine as it raises the issue of jurisdiction.  The issue was whether the plaintiff gave notice of his intention to make a claim against the defendant pursuant to s.54(6) of the Motor Vehicles (Third Party Insurance) Act.   Ms. Kumo argued that it was settled law that the giving of a notice of intention to make a claim against the defendant pursuant to s.54(6) of the Motor Vehicles (Third Party Insurance) Act is a mandatory requirement and it is a condition precedent to the making of any claim against the defendant and a failure to comply was fatal.  She stated that in the present case, the plaintiff’s evidence fails to demonstrate that he gave a notice of intention to make a claim against the defendant pursuant to s.54(6) of the Motor Vehicles (Third Party Insurance) Act so the plaintiff’s claim should be dismissed.   During discussions between the bench and Ms. Kumo on this point, she conceded however that this issue did not form part of the triable issues agreed to by the parties in the Statement of Facts and Legal Issues for Trial and that no notice in writing or otherwise was given to the plaintiff before trial about this issue being raised at the trial.  Ms. Kumo also argued that the matter about giving of a notice of an intention to make a claim was a threshold issue that concerns the jurisdiction of the court, including the validity of the proceedings, and can be raised and determined at any stage of the proceedings.

17.	Ms. Waeda for the plaintiff in essence argued that the defendant’s conduct has taken the plaintiff completely by surprise without notice in writing or otherwise and it was tantamount to the plaintiff being ambushed at the trial.  It was on that basis that counsel contended that the Court should confine itself to the issues agreed to by the parties in the Statement of Facts and Legal Issues for Trial.  She said, in any event, the plaintiff gave notice of his intention to make a claim against the defendant pursuant to s.54(6) of the Motor Vehicles (Third Party Insurance) Act on 16 October 2014 as was pleaded at paragraph 3 of the Amended Statement of Claim and this was confirmed by the defendant at paragraph 3 of the Amended Defence. It was also submitted that the defendant’s conduct in encouraging the plaintiff to continue negotiations for settlement on several occasions by implication demonstrated that the plaintiff had already given a notice of intention to make a claim against the defendant hence no issue was raised by the defendant in that regard and that the defendant was bound by its conduct. 

18.	It is trite that a person who wants to make a claim for damages in respect of the death of or bodily injury arising out of a motor vehicle accident must make the claim against the defendant and not against the owner or driver of a motor vehicle:  s.54(1) of the Motor Vehicles (Third Party Insurance) Act. Two different stages and processes are involved before making a claim against the defendant.  The first is that prior to the filing of court proceedings, a claimant must give notice of the intention to make a claim to the defendant under Section 54(6).  This is a mandatory requirement as was propounded in Rundle v Motor Vehicles Insurance (PNG) Trust (No.1) [1988-89] PNGLR 20.  It is a condition precedent to the institution of any action to enforce any claim against the defendant: Rundle v Motor Vehicles Insurance (PNG) Trust (No.1) [1988-89] PNGLR 20.  The issuing and serving of a writ of summons cannot be deemed to be sufficient notice of intention to make a claim or is a notice of intention to make a claim itself for the purposes of s.54:  per Kidu CJ and Amet J, Rundle v Motor Vehicles Insurance (PNG) Trust (No.1) [1988-89] PNGLR 20.  The second is the action taken to enforce a claim and in the National Court it is instituted by a writ of summons. 

19.	It is instructive to set out below s.54(6) which states:

“No action to enforce any claim under this section lies against the successor company unless notice of intention to make a claim is given by the claimant to the successor company within a period of six months after the occurrence out of which the claim arose, or within such further period as -
(a) 	the Commissioner; or
(b) 	the court before which the action is instituted,
on sufficient cause being shown, allows.”

20.	The phrase “successor company” means the defendant:  see ss.65, 71 and 72 of the Motor Vehicles (Third Party Insurance) Act.

21.	In the Statement of Facts and Legal Issues for Trial, one of the disputed facts identified by the parties at paragraph B(ii) was as follows:

“Prior to the filing of this claim, the Plaintiff gave due notice as a condition precedent pursuant to s.54 of the Motor Vehicles (Third Party Insurance) Act on the 16th October 2014 of his intention to make a claim against the Defendant.” 

22.	The question which is produced from this disputed fact is whether or not the plaintiff did give his notice of intention to make a claim against the defendant pursuant to s.54(6).  

23.	The Statement of Facts and Legal Issues for Trial contains facts that the parties have mutually proposed and accepted as either undisputed or disputed which emerge from evidence that is already contained in affidavits filed by the parties in the proceedings or other evidence to be called at the trial and triable issues that the parties mutually accept that are all to be the subject for decision by the Court. The triable issues agreed to by the parties are set out immediately after the agreed and disputed facts are stated.  Clearly, for reasons only known to the parties and their lawyers, the omission of this important issue in the Statement of Facts and Legal Issues for Trial which goes to the question of jurisdiction of the Court is unexplained by any evidence from any of the parties.  

24.	In the circumstances, will the grant of the defendant’s application at this stage of the trial cause real prejudice or injustice to the plaintiff or where do the interests of justice lie?   

25. 	As I have alluded to earlier, at paragraph 3 of the Amended Statement of Claim and restated at paragraph B(ii) of the Statement of Facts and Legal Issues for Trial, the plaintiff alleges that on 16 October 2014, he gave notice of his intention to make a claim against the defendant pursuant to s.54 of the Motor Vehicles (Third Party Insurance) Act.  In response to that allegation, the defendant averred at paragraph 3 of the Amended Defence that it received and acknowledged receipt of emails from the Office of Workers Compensation dated 11 September and 16 October 2014, but did not know and could not admit each and every other allegation.  

26.	I have considered the parties’ submissions.  I concur with Ms. Kumo’s  submission that an objection as to the competency or validity of any proceedings and can be raised and determined at any stage of the proceedings and in claims against the defendant under s.54 of the Motor Vehicles (Third Party Insurance) Act, for want of giving a notice of intention to make a claim.  This is consistent with decision of the Supreme Court in Sir Arnold Amet v Peter Charles Yama (2010) SC1064 which held that the issue of competency can be raised at any stage of the proceedings.   However, I have decided to reject the defendant’s application because the parties are bound by their conduct. The issue raised now did not form part of the triable issues that the parties mutually agreed to for determination by the Court. In addition, since the defendant has raised this issue at the 11th hour, I think it would be fair to say that the onus has shifted to the defendant to prove that the plaintiff failed to give his notice of intention to make his claim.  The defendant has not adduced any evidence to substantiate the assertion.  I accept Ms. Waeda’s argument that the defendant’s conduct in raising the issue now has taken the plaintiff completely by surprise without notice in writing or otherwise and it was tantamount to the plaintiff being ambushed at the trial.  The omission of the issue as a triable issue in my view weighs heavily in favour of the plaintiff and by implication demonstrates that it was not a contentious issue for Court’s determination.  Consequently, I agree that the Court should confine itself to the issues agreed to by the parties in the Statement of Facts and Legal Issues for Trial.  

27.	Given this, it is not necessary to address other arguments of the parties.

28.	In addition, the grant of the application at this stage of the trial will definitely cause real prejudice or injustice to the plaintiff.  The interests of justice lie in refusing the defendant’s contention.  The opportunity for the plaintiff to address the issue under contention by evidence which was outside the issues that the parties mutually agreed to for determination by the Court has been denied by the conduct of the defendant in not raising the issue much earlier either during interlocutory stages or before the commencement of trial.  

29.	I am satisfied that the plaintiff’s claim is properly before the Court and will now address the first two triable issues on liability. 

BURDEN AND STANDARD OF PROOF

30.	In civil proceedings, the general rule is that he who asserts must prove it  (Shaw v Commonwealth of Australia [1963] PNGLR 119, Supreme Court Reference No 4 of 1980 [1982] PNGLR 65, Reference by the East Sepik Provincial Executive (2011) SC1154, Galem Falide v Registrar of Titles and The State (2012) N4775, Board of Management, Holy Spirit Primary School v Moses Sariki (2013) N5446) and the standard of proof is on the balance of probabilities. Hence, the burden may shift to the party who asserts and who must then prove it:  JD Heydon, Cross on Evidence, Butterworths, Fifth Edition, 1996, paragraphs 7200-7230.

NEGLIGENCE
Law of negligence

31.	In the landmark case of Donoghue v Stevenson [1932] AC 562, Lord Atkin set the foundation of the modern law of negligence when he propounded the “neighbour test” as the basis for when a duty of care is owed.  Lord Atkin at p.580 said:

“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply.  You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.  Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”   

32.	At Independence, pursuant to Schedule 2.2 of the Constitution, Papua New Guinea adopted the common law of negligence as part of the underlying law.  As part of the underlying law, a driver owes a duty of care to other road users including motor traffic; pedestrians and passengers: Donoghue v Stevenson (1932) AC 562; Robert Brown v Motor Vehicle Insurance (PNG) Trust [1980] PNGLR 409, Andrew Moka v MVIL (2004) SC729, Daniel Occungar v Luke Kiliso (2010) N4102, Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562, Paul Perex v PNG Institute of Medical Research (2014) N5614.  The standard of care attributed to a driver of a motor vehicle is an objective one, measured by the standard of a skilled, experienced and objective driver: Robert Brown v Motor Vehicle Insurance (PNG) Trust [1980] PNGLR 409, Andrew Moka v MVIL (2004) SC729, Daniel Occungar v Luke Kiliso (2010) N4102.  Once he breaches that duty of care, he is liable in damages for negligence.

33.	Thus, in order to establish a cause of action in negligence, the essential elements that must be proved by a claimant or plaintiff are:

1.	The defendant owed a duty of care to the plaintiff;
2.	The defendant breached that duty; and
3.	The plaintiff suffered injury which was caused by the breach of duty and the type of injury was not too remote.

34.	Many decisions of both the Supreme Court and National Court affirm these principles and some of these, to name a few, are; The Government of Papua New Guinea v Elizabeth Lauwasi Uguna Moini (1978) PNGLR 184; Burns Philp (NG) Ltd v Maxine George (No 2) (1983) SC259; Kolta Development Pty Ltd v PNG Defence Force [1997] PNGLR 585; Kembo Tirima v Angau Memorial Hospital Board and The State (2005) N2779; Francis Wandaki v Wini Henao (2009) N3676; Tony David Raim v Simon Korua (2010) SC1062; Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562; and Micky Akai v John Stanley Reeves (2014) SC1393.  

Summary of evidence

35.	The evidence produced by the plaintiff in essence is not contested by the defendant by any rebuttal evidence.  However, has he proven his case against the defendant on the balance of probabilities?

36.	The evidence from Jeffery Malesi Oneau (Jeffery), Lynnette Goa (Lynette) and the plaintiff is that:

1.	The plaintiff is an adult male aged in excess of 36 years now from Gaire village, Central Province, Papua New Guinea and is married to Lynette.
2.	On the night of 17 May 2014, a function for a rugby club of Gaire village was hosted at the Car Club along Waigani Drive, Port Moresby.
3.	The plaintiff and Jeffery attended the function.
4.	In the early hours of the morning on 18 May 2014 at around 01:00 and 02:00 am, the function ended and they exited the club.
5.	A commotion occurred between patrons within the premises of the Car Club and ESS tried to disperse the crowd using the motor vehicle, white in colour. 
6.	Whilst the plaintiff was standing outside the perimeter fence of the Car Club at the gate or entrance with Jeffery about three metres off the road from Waigani Drive, the motor vehicle drove towards them and bumped Jeffery slightly as he jumped and landed on the roof of the motor vehicle’s bonnet upon being alerted by the plaintiff.
7.	The plaintiff proceeded to try to get a taxi, but was suddenly hit by the motor vehicle and a protruding metal from the bumper bar pierced his buttocks and caused him to be pinned to the bumper bar.  
8.	The plaintiff was driven into a nearby pit and rammed into the Telikom structure.
9.	While pinned to the bumper bar, the motor vehicle was reversed and driven forward and rammed the plaintiff into the Telikom structure the second time. 
10.	The plaintiff held onto the Telikom structure and became dislodged as the motor vehicle was reversed.
11.	The motor vehicle was driven forward again and hit him against the Telikom structure the third time.
12.	The plaintiff who was soaked in blood fell unconscious and was helped by bystanders and rushed to the Port Moresby General Hospital in a taxi where he was hospitalised and given appropriate medical attention.
13.	The plaintiff suffered multiple injuries to his body from the alleged accident.

37.	A copy of the Police Road Accident Report submitted on 3 September 2014 by Sgt. Nathaniel George and reviewed on 4 September 2014 is annexed to Exhibit “F” as annexure “A”.   Sgt. George reports that on the night of 17 May 2014 he was on duty when he attended the scene of the alleged accident at the Car Club adjacent to the Waigani Drive in the early hours of the morning on Sunday, 18 May 2014 at about 03:00 am.  He was a First Constable at the time.  The Police Road Accident Report also reports that:

1.	Only one vehicle, a Toyota Station Wagon bearing registration number LBK 420 which was expiring on 26 November 2014 was involved in the alleged accident;
2.	The motor vehicle was owned by ESS;
3.	The motor vehicle was covered by Third Party Insurance Policy No.923727;
4.	The motor vehicle was driven by Kila, a male national aged 35 years who held a full Class 6, PNG Driver’s Licence No.2073759 which was to expire on 25 November 2014 and he had a driving experience of five years at the time of the alleged accident.
5.	Kila was not suspected of drink driving and he did not suffer any injury to his body; 
6.	The cause of the alleged accident was that Kila was inattentive at the wheel;
7.	The alleged accident occurred while Kila was driving the motor vehicle to disperse a crowd fighting after partying at the Car Club outside the premises and in the course bumped a pedestrian namely, the plaintiff;
8.	The plaintiff aged about 35 years suffered multiple injuries to his body;
9.	The motor vehicle was a security vehicle used to protect the area;
10.	The motor vehicle was called in to disperse the crowd;
11.	The motor vehicle bumped the plaintiff who was initially part of the crowd, but was already outside the premises of the Car Club waiting for transport to be dropped off when a fight broke out; and
12.	Kila was at fault so he was arrested and charged for negligent driving under s.17(1) of the Motor Traffic Act.

38.	The medical evidence of Dr. Jenny Tovu, Dr. Siwi Wawe (annexure E, Exhibit A); and Dr. Ikau Mataio Kevau shows the history of the plaintiff’s hospitalisation at the Port Moresby General Hospital on 18 May 2014 after the alleged accident due to the multiple injuries he suffered and the medical attention given to him including the diagnosis and prognosis of the multiple injuries.   The plaintiff was rushed to the Accident and Emergency Unit that night and immediately taken to the operating theatre where he underwent an exploratory laparotomy (surgical operation opening abdomen to examine abdominal organs for injury or disease).

39.	Dr. Tovu was on duty at the time the plaintiff was admitted at the Emergency and Accident Unit and was part of the team of doctors who attended to the plaintiff.  A copy of her medical report dated 3 June 2014 is annexed to Exhibit “C” as annexure “A”.  She reports that the plaintiff was in hypovolemic shock, his blood pressure was unstable; pulse was very weak and rapid; he was drowsy and confused and lying in a pool of blood.  She reports that the plaintiff was resuscitated, stabilised and x-ray taken of his pelvis.  She reports that local examination revealed that the plaintiff had a bruised pelvis; legs were externally rotated, right shorter than the left; anus and rectum torn open and bleeding profusely; left testis burst open from the containing fascia and skin; and there was an open wound to the right groin with expanding surgical emphysema.   The x-ray of the pelvis revealed; a fracture of both the superior and inferior ramus of the pelvic bone; displaced symphysis pubis; fracture right acetabular; and a disrupted right sacroiliac joint.  The intraoperative findings were; no blood; bowels (N); moderate retro-peritoneal bleeding; bladder (normal); anus and rectum all torn and open; the perineum was full of blood; a diverting loop colostomy was done; rectal wound was packed; left testes was put back into the scrotum and sutured; and the right side was debrided and left open.   

40.	Annexure “A” to Exhibit A are photographs of the plaintiff at the Port Moresby General Hospital on admission.

41.	The Discharge Summary shows that the plaintiff was discharged from the hospital on 25 July 2014:  see annexure “B” to Exhibit “A.”

42.	On 5 November 2014, the plaintiff was admitted to the Port Moresby General Hospital again due to complications he experienced within his body and for closure of the colostomy on 11 November 2014.  The Discharge Summary shows that the plaintiff was discharged from the hospital on 17 November 2014:  see annexure “D” to Exhibit “A.”

43.	A medical report dated 12 February 2015 was prepared by Doctor Wawe:  see annexure “E” to Exhibit “A”).   He was involved in the treating of the plaintiff on his first admission to the Port Moresby General Hospital.  He reports that the plaintiff sustained the following injuries:

	1.	Torn rectum and anus.
	2.	Burst left testis.
	3.	Fractured pelvis (Classification: Tiles C).
44.	The plaintiff presented himself before Dr Wawe some nine months after sustaining his injuries for examination and review.  The physical examination conducted revealed that the plaintiff sustained the following permanent impairments:

	1.	Disfiguration due to multiple scarring.
	2.	Anatomical disruption and effective functional loss of the rectum and anus.
	3.	Anatomical disruption and effective functional loss of pelvis and right lower limb.
	4.	Loss of left testis.
	5.	Urethral strictures – effective functional loss of urine flow. 
 
45.	Dr. Wawe’s prognosis was that the plaintiff suffered serious skeletal and bowel injuries in that:

1.	The pelvis fractures healed in an unreduced position; the limb shortening was permanent; and the limping gait was a permanent disability.  This kind of gait was going to affect the plaintiff’s hip and back in the long run.
2.	The delay in bowel motion was probably due to the rectal and anal injuries and most likely would resolve in due course of time.  The plaintiff may experience some pain on defecation from the strictures developed from the injuries on the rectum and anus. 
3.	The loss of the left testis and having only one testis may affect fertility.
4.	The dysuria (painful urination) is due to strictures developed from multiple insertion of Indwelling Catheterization (IDC) as part of the initial injuries’ management in emptying urine and could potentially progress to causing urinary flow obstruction.  

46.	The plaintiff presented himself before Dr. Kevau, a Senior Consultant General and Orthopaedics and Trauma Surgeon at the Port Moresby General Hospital on 15 October 2015 for purposes of assessment of his vehicular induced injuries and review.  A copy of the doctor’s medical report dated 15 October 2015 is annexed to Exhibit “B” as annexure “A”.

47.	Doctor Kevau’s physical examination of the plaintiff affirmed that the plaintiff suffered the following injuries:

1.	Major injury to his pelvis causing a major fracture of the pelvic ring with resultant haemorrhage causing haemodynamic instability.
2.	Major injury to his anus and peri-anal area resulting in a deep penetrating injury which was bleeding actively and profusely and more importantly causing problems with gastrointestinal system.
3.	Avulsive injury to his right scrotum resulting in destruction of his right testis which was then widely exposed, hanging and non-viable and therefore removed.  He is therefore left with one testis. 
4.	Abdominal injury in association with the peri-anal injury, for which he underwent a major surgical operation called laparotomy and diverting colostomy.    

48.	Doctor Kevau’s medical report also discloses that the plaintiff would suffer the following long term or they were permanent problems:

1.	Forty percent (40%) psychological disturbance created by the recollection of events;
2.	Ninety percent (90%) loss of function of his right lower limb and leg in general due to his major sacroiliac joint injury with significant migration superior.
3.	Fifty percent (50%) loss of male reproductive functional loss.
4.	Eighty percent (80%) loss of normal gastrointestinal functional loss secondary to anal injury leading to diverting colostomy and its long term complications. 

Parties’ submissions

49.	Ms. Waeda for the plaintiff submits that there was overwhelming evidence that shows that Kila, who was the driver of the motor vehicle, was negligent in his driving and that caused the accident which resulted in the plaintiff sustaining multiple injuries. She said the evidence supported all elements of negligence.

50.	Ms. Kumo contends that the driver of the motor vehicle was not negligent as the plaintiff deposed to in paragraph 11 of Exhibit A that he was bumped when he turned his back on the motor vehicle while trying to stop a taxi. 

Reasons for decision

51.	There is no doubt that Kila owed a duty of care to other road users including the plaintiff as a pedestrian. 

52.	There is overwhelming evidence adduced by the plaintiff that Kila deliberately drove at the plaintiff and failed to control his steering so as to avoid hitting the plaintiff in the first instance outside the premises of the Car Club and failing to take the necessary precautions and apply the brakes to avoid hitting the plaintiff the second and third time.  The phrase “public street” means a street, road, lane, thoroughfare, footpath etc as defined under s.1 of the Motor Vehicles (Third Party Insurance) Act.   Clearly the accident took place on a public street.  I reject the defendant’s submission.   There was a clear breach of his duty of care.

53.	The evidence shows that the plaintiff suffered multiple injuries which was caused by the breach of duty and the type of injury was not too remote.

54.	All elements of negligence have been established so the defendant is liable in negligence.

CONTRIBUTORY NEGLIGENCE
Law of contributory evidence

55.	Contributory negligence is a statutory defence:  Section 40(1) Wrongs (Miscellaneous Provisions) Act, Helen Jimmy v Paul Rookes (2012) N4705:

“40.	Apportionment of liability in case of contributory negligence.
(1)	Subject to Subsection (2), where a person suffers damage as the result partly of his own fault and partly of the fault of any other person, a claim in respect of the damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect of it shall be reduced to such extent as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage.”

56.	A party who relies on contributory negligence as a defence must adduce appropriate evidence to substantiate contributory negligence of the other party:  Papua New Guinea Institute of Medical Research v Papua New Guinea Banking Corporation (1999) N1934, Andrew Moka v MVIL (2004) SC729 and Helen Jimmy v Paul Rookes (2012) N4705.  “Contributory” in modern cases of negligence means “causing directly”:  Andrew Moka v MVIL (2004) SC729. 
 
57.	In Helen Jimmy v Paul Rookes (2012) N4705, Cannings, J at [15] said:

“Contributory negligence is a partial defence in a negligence action. It applies where a defendant proves that a plaintiff is partly to blame for the damage for which the defendant has been found liable (Brown v MVIT [1980] PNGLR 409). It is recognised as a defence by Section 40(1) of the Wrongs (Miscellaneous Provisions) Act, which relevantly states:

… where a person suffers damage as the result partly of his own fault and partly of the fault of any other person, a claim in respect of the damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect of it shall be reduced to such extent as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage.”

58.	Both the National and the Supreme Courts have refused to grant plaintiffs any relief or allowed parties to call or rely on evidence that have no foundation in the pleadings.  This principle was affirmed by the Supreme Court in Steven Charles Pickthall v Lae Plumbing Pty Ltd (1994) PNGLR 363 and PNGBC v Jeff Tole (2002) SC 694.
59.	Order 8 Rule 15 of the National Court Rules requires a defendant who relies on contributory negligence to plead the contributory negligence.  The rule states:
“15.	Contributory negligence. (15/14)
A defendant who relies on contributory negligence shall plead the contributory negligence.”

Parties’ submissions
60.	Ms. Waeda for the plaintiff submits that the plaintiff did not contribute to his injuries at the time of the accident as:

1.	the plaintiff was standing on the pavement, about three metres away from Waigani Drive;
2.	the plaintiff took steps to avoid getting bumped by the motor vehicle; and
3.	upon being bumped in the rear by the motor vehicle and getting rammed into the Telikom cable structure, the plaintiff dislodged himself by grabbing the Telikom cable structure. 
 
61.	In addition, Ms. Waeda submitted that the defendant failed to call evidence to support its claim of contributory negligence.

62.	Ms. Kumo contended that the Police Road Accident Report was unclear as to where the plaintiff was positioned at the scene of the accident including if he were on the road or away from the road.  Counsel said the circumstances surrounding the alleged accident showed that the plaintiff was guilty of contributory negligence.   

Reasons for decision

63.	The defence of contributory negligence was not pleaded in the defendant’s Amended Defence.  The Court is not bound by parties’ agreement to include this as a triable issue contrary to standing and trite principle of law on pleadings and Order 8 Rule 15 of the National Court Rules.  The defendant’s argument is rejected as a result.

64.	In any event, the defendant has failed to call evidence to prove that the plaintiff was partly to be blamed for the alleged accident and the injuries sustained.

65.	I am also satisfied that the argument on contributory evidence cannot be sustained as evidence adduced by the plaintiff shows that, on the balance of probabilities, the accident was caused by the negligent driving of the motor vehicle by Kila.
 
66.	In the result, I am satisfied that there was no contributory negligence on the part of the plaintiff at the time of the alleged accident. 

COSTS

67.	The general rule is that costs of the successful party is paid for by the losing party on a party-to-party basis, i.e., costs follow the event. The question of costs is a discretionary matter. There is no reason to warrant a departure from the general rule.  I have decided that costs will follow the event, i.e., the defendant shall pay the plaintiff’s costs of and incidental to these proceedings, if not agreed, to be taxed.  

ORDERS

68.	The formal orders of the Court are:

1.	Judgment on liability is entered in favour of the plaintiff.
2.	The defendant shall pay the plaintiff’s costs of and incidental to these proceedings, if not agreed, to be taxed.  
3.	The matter is fixed for trial on assessment of damages including hearing of submissions on Monday, 30 May 2022 at 09:30 am.
4.	The parties are at liberty to file and serve on each other affidavits to be relied on at the trial by 20 May 2022.
5.	The parties are at liberty to file and serve on each other relevant notices for the use of affidavits and cross-examination of deponents of those affidavits under the Evidence Act at the trial. 
6.	Time is abridged.
  
Judgment and orders accordingly.
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Public Solicitor: Lawyers for the Plaintiff					
Jema: Lawyers for the Defendant